Strategic Litigation as Part of the Alternative Lawyering Strategies in

the Philippines: a SALIGAN Mindanaw Perspective

Sentro ng Alternatibong Lingap Panligal (SALIGAN Mindanaw)
Conference paper presented at the conference
Rights and Accountability The Way Ahead for Business and Human Rights
Berlin, 21./22. November 2011
SALIGAN is an acronym, which translated, in English means Alternative Legal
Assistance Center. We are a legal organization working in partnership with workers,
farmers, fisherfolks, Moro and indigenous peoples, urban poor and rural communities.
Our work with the basic sectors enables us to engage in legal literacy and paralegal
formation, litigation support, policy advocacy, research and publication, and
internship. We are founded in 1987, one of the organizations that arose from the
democratic institutions built after the Philippine martial law.
We are a member of the Alternative Law Groups, Inc. (ALG), a network of legal
resources organizations in the Philippines working towards alternative or
developmental lawyering. In a paper entitled Mainstreaming the Alternative1 by the
Alternative Law Groups, Inc., the ALG described this Philippine-style of public interest
lawyering as:
The ALG experience of public interest lawyering manifests that alternative
lawyering means more than just precipitating social change through court
ordered decrees, enforce existing laws and articulate public norms. To be
an alternative, developmental or feminist lawyer means to view law as an
indispensable weave in our social fabric. It is to practice law fundamentally
for individuals, communities and sectors that have been historically,
culturally and economically marginalized and disenfranchised. The mark of
such practice is that it seeks not only to create ripples of public impact from
individual cases but also that it empowers in the process. To be an
alternative lawyer means a clear professional commitment that the use of
law is not the sole domain of those who have passed the bar and taken the
oath, but could and should be shared with the individuals, communities and
sectors which it affects.
Alternative lawyers therefore do not practice alone. At the very least, their
clients, beneficiaries or partners participate in the process. They do so not
only as paralegals but also as peoples who work to better their conditions.
They do so as principal actors in making decisions on options which have
been laid out by the alternative law group. Ideally they know every twist
and turn of every metalegal action that they engage in.
As lawyers, litigation is a major tool in SALIGANs work, but not necessarily the
primary strategy. We only use litigation if such strategy to defend the
1

http://alternativelawgroups.org/resources.asp?sec=det&id=171 accessed on November 2011.

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marginalized sectors rights and interests will provide an opportunity for major
policy pronouncements to the sectors benefit. We prioritize test cases that will
bring precedence favorable to them or those suits that we sense would
strengthen the empowerment process of a particular community or the
complement the organizing strategy of the organization.
Our experience in litigation in the Philippines varied from the precedent-setting
cases to community empowerment cases. Particularly for our Mindanao
branch, we got to handle a case involving the intervention of community
members affected with aerial spraying practices of banana companies.
Cavendish bananas are sprayed with fungicides using airplanes, which upon
spraying drifts even beyond the plantations, towards neighboring residents
house, farms and sources of water. The residents lobbied with the local
legislative council to ban such practice as it affected their health, livelihoods
and sources of water. The City of Davao responded through an ordinance
banning aerial spraying. The banana plantations, along with their organization,
the Pilipino Banana Growers and Exporters Association (PBGEA)2, which counts
among its members Del Monte Fresh Produce Philippines and DOLE Stanfilco,
filed a case questioning the constitutionality of the local government ordinance
banning aerial spraying practice.
The case is between PBGEA, et. al. versus the City of Davao, but community
residents affected by the harmful practice filed its Intervention, claiming a party
in interest, to which standing of the community residents were opposed by
PBGEA claiming that the issue is the validity of an ordinance, and citizens are
already represented by the City of Davao. Eventually the trial court allowed the
intervention and presented evidence of their experiences whenever aerial
spraying occurs, such as itchiness in their skin, irritations in the eyes, difficulty in
breathing, plants wilting and even their sources of water were contaminated.
PBGEA, on cross-examination, questioned why the residents failed to see a
doctor for their health complaints and other experts for their contamination that
might be caused by other factors. The residents testified that they do not have
the resources to conduct the tests, and can only complain with the local
council for an ordinance to put a stop to the practice.
PBGEA presented its case before the trial court, supported by a leading Manilabased law office, with expert witnesses claiming there is no scientific basis to
support an aerial spray ban, and even one coming from Dow Agrosciences in
the UK, defending the safety of their fungicides. The trial court ruled in favor of
the validity of the ordinance, recognizing the power of a local government to
protect the right of the people to their health and the environment, and the
judge relied on the testimony of the residents and a leading toxicologist in the
country on the danger of even a drop of chemical affecting peoples health.
Information from their website, www.pbgea.org. The PBGEA website includes their responses to the
statement of another toxicologist in the Philippines, who conducted a health study of a community located
beside a plantation. A banana plantation filed a libel case against the doctor, which eventually were
dismissed by the judge, but the decision was appealed by the company.
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On appeal, the Court of Appeals reversed the trial courts decision, but not
without having most of the justices inhibiting from being involved in the case. A
lone well-written dissent saved the day for the residents who even camped
outside the appellate court to give them justice.
The case is now pending in the Supreme Court, which final resolution of the case
involving the constitutionality of the aerial spray ordinance, still languishes in
delay. The court did not issue any injunction to temporarily stop aerial spraying
while the case is pending, hence the toxic chemical continue to be sprayed on
innocent target. This case illustrates the asymmetry of power and resources that
the communities have against powerful corporations. While the corporations
can secure legal representation and can provide resources for any delay in a
lengthy court proceedings, even on appeal, community members have to rely
on their own commitment to continue with the case, keeping the fire among
other members of the community burning to continue with their advocacy.
Community members attending the hearings would have to be briefed before
and after every hearings about what is happening as their lawyers and the
corporations lawyers argue about a point, object on what was testified and in
a language not fully understandable to them. Aside from it is in English, it is also
legalese. When a community member testifies, an interpreter have to translate
everything, when all of them, the judge, lawyers, and everyone present in court,
understands Filipino. Unfortunately, Philippine laws and court procedures are all
in English, and one in translation are the members of the community, who are
the party most affected with the results of the matter in litigation.
As an organization, SALIGAN believes that litigation is just one strategy towards
our goal towards the legal empowerment of the poor and marginalized. It is not
the only strategy towards legal empowerment of communities. In fact, it should
only be used on exceptional circumstances. What litigation can achieve is to
strengthen the community organizing processes. In this case, the lead
organization of the residents, the Mamamayan Ayaw sa Aerial Spraying (MAAS),
from their lobbying efforts with the local government, galvanized their actions
towards supporting the case in court. Media are always interested in a lawsuit,
and the coverage over a case against a corporation might be making
headlines, and this becomes a tool to highlight the issues and educate the
general public on what is happening in rural communities. Another advantage
of litigation is this can facilitate legal education of communities who have no
opportunity to be informed of their rights as a people, to clean air and water,
and of a healthful and balanced ecology. Litigation can become a tool for
legal empowerment.
The pitfall of any litigation might be the too much dependence on the leading
actors in any lawsuit, the judge and the lawyers, while the empowerment
processes of communities might take a backside. Without proper guidance, the
focus is on how lawyers eloquently delivered their objections and how a judge
controls his courtroom from the drama of the lawyers. The issues of human rights
abuse suffered by communities are also sidelined with the bigger story of
banana companies pulling out their investments in the city. Amidst the technical
ramifications and ruminations of case lies a story of communities having their
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rights violated by a corporation. What litigation cannot achieve is fully exhaust

what truth and justice are, as the legal procedures tend to be more technical,
than substantial. In the end, only those who have sufficient resources and
influence can fully get justice in the formal legal structure.
SALIGAN is a member of the Philippine Misereor Partnership (PMP), a network of
more than 300 non-governmental and civil society organizations in the
Philippines. Together these organizations strive to fight poverty, promote
development of the poor people of the Philippines and to defend human rights.
Saligan thanks Misereor for their invitation and support to attend and contribute
to this conference.